Pope Benedict begins the third chapter of his encyclical Caritas in Veritate with the following words:
Charityin truth places man before the astonishing experience of gift. Gratuitousness is present in our fives in many different forms, which often go unrecognized because of a purely consumerist and utilitarian view of life. The human being is made for gift. ... Sometimes modern man is wrongly convinced that he is the sole author of himself, his fife, and society. This is a presumption that follows from being selfishly closed in upon himself. ... (1) He had stated earlier that truth grasps the meaning of charity as "gift, acceptance, and communion." (2) It follows, then, that the human person is created for love, an affirmation that should not be surprising coming from a Pope. The incongruity seems to appear when "charity as gift" is accorded the important and even systematically central place given it by Pope Benedict in his encyclical on social justice and economics. (3) A similar incongruity suggests itself in the context, if one notes the difficulty in resolving a twofold tension: one between a free individual and the claim made on him by a "law," and the other between the individual and a similarly free individual "over and against" whom he exercises a claim by virtue of a "right." In the first instance, the law is in the vertical dimension: it stands "above" and claims to bind him, a free individual; in the second, he makes a claim on another free individual in the horizontal dimension. If one understands freedom in the full and proper personal sense, the proposition that a "law" has its foundation in the "good" cannot reconcile the freedom of the individual and the binding character of the law. Nor can this occur with the reduction of the binding character to the "agreement" to limit individual claims as a matter of practical necessity. Pope John Paul II considers such a reduction as precisely excluding objective interpersonal bonds:
[S]ome kind of compromise must be found, if one wants a society in which the maximum possible freedom is guaranteed to each individual. In this way, any reference to common values and to a truth absolutely binding on everyone is lost, and social life ventures on to the shifting sands of complete relativism. At that point, everything is negotiable, everything is open to bargaining: even the first of the fundamental rights, the right to life. (4) It is interesting that explaining the ensuing relativism in the same paragraph, Pope John Paul II simply and correctly notes, "right' ceases to be such, because it is no longer firmly founded on the inviolable dignity of the person, but is made subject to the will of the stronger part." (5)
I do not intend to dispute in the present Article what has become a formulaic assertion in Catholic circles, that human rights are grounded in the dignity of the human person (6) and, one almost invariably finds added, in the fact that man has been created in the image of God. (7) Yet this truth is not grasped with a theoretical clarity sufficient to raise consciousness about the very thing Pope John Paul II notes in the preceding two paragraphs, the "surprising" and the "remarkable" contradiction between the affirmation of human rights in words and their denial in deeds. (8) In the context of these paragraphs, he indicates cultural and moral reasons for this remarkable contradiction. In plain language they are selfishness; in more theoretical language they are a concept of subjectivity pushed to the extreme. He lists a number of explanations for the violation of the value and dignity of human life identified as foundation for human rights. (9) One of these is the crisis of culture that "makes it increasingly difficult to grasp clearly the meaning of what man is, the meaning of his rights and his duties." (10) But he gives only a brief indication of what might be taken as a theoretical explanation or grounding of this dignity itself or of the meaning, that is, of the nature of rights and duties. One of these indications is the affirmation that human life is "a sacred reality entrusted to us, to be preserved with a sense of responsibility and brought to perfection in love and in the gift of ourselves to God and to our brothers and sisters." (11) Pope John Paul II does not accord the concept of gift the systematic and thematic role it actually plays in the encyclical, (12) as well as in his thoughts in general before and after his election to the papal throne. (13)
In contrast, Pope Benedict accords the concept of gift a more systematic role, devoting the third chapter of Caritas in Veritate to what he calls, at one point, the "logic of the gift" with regard to its implications for fraternity and integral human development. (14) He contrasts it with a "mere logic of the exchange of equivalents, of profit as an end in itself." (15) The encyclical teaches the difference it makes to the social context for us to look at man as "made for gift." (16) Still, it presupposes rather than explains the meaning of gift. In the present Article, I propose a conceptual sketch of what would be a metaphysics of gift in the sense of Pope John Paul II--the concept of the gift as a hermeneutical key for a new understanding of creation1 (17)--as it bears on the narrower question of human rights and their foundation. I propose to ask not so much St. Paul's first question, "What have you that you did not receive?" (18) as "Why have you been given anything at all?" The answer to this may also provide some systematic answer to his second question, "If then you received it why do you boast as if it were not a gift?" (19)
In the interest of narrowing the focus of this Article, I can formulate my approach in terms of the above mentioned tensions between the individual and, on the one hand, something that claims to bind him "from above" in the manner of what has been traditionally called "law" and, on the other hand, someone "over and against" whom he exercises a claim to what is "his own by right." In each case we have an existential tension between a free individual who is "his own" and a claim to bind him. I will take "right" to mean a legitimate or justified claim grounded in ownership in the strict and proper sense of the word. The theoretical justification of the grounding relation will require a conceptual articulation of some central elements entailed by a metaphysics of "right." I will propose the concept and nature of a gift as one such element in what can be a personalistic approach to and development of traditional "natural law." Accordingly, drawing on the personalism of the current Pope and his predecessor, I will deal in the first section with the subjective foundations of rights from the perspective of the gift, focusing on the concepts of ownership, experience, self-possession, and the free-personal center. In a second section, I will deal with the possible "dialectic" of these concepts. Each can be understood as one of two mutually exclusive meanings according to the way that their "reference" is one of the two possible existential actualizations or exercises in personal acts. Each will have one of two existentially contrary meanings according to whether the individual performs personal acts for his own sake or for the sake of another. The concept of "ownership," for example, will mean one thing in the context of acts "for my own sake" and the opposite in the case of acts "for the sake of the other." Each concept will be an accurate and adequate grasp of a real experience that can serve as evidence for each of two opposed and ultimately irreconcilable theories of "right." The third section will deal with the objective foundations of right to include the structure of the gift, with its complementary moments of receiving and giving as key to understanding the objective bond it establishes, one in which the subjects of a reciprocal giving and receiving of the gift of self come to "belong" to each other. The nature of the gift should open the field of "rights" to an analysis of the ways a personal being can be "bound" to others, in the mode of "yours" and/or in the mode of "mine." The conclusion will reflect briefly on the way a hermeneutics of the gift can bring to light a personalist dimension not taken into account in traditional natural law theories.
THE SUBJECTIVE FOUNDATION OF RIGHTS
The above questions raised by St. Paul bear on the theme of ownership that cuts across if not unites charity and justice. Speaking of the relation between these, Pope Benedict writes:
Charity goes beyond justice, because to love is to give, to offer what is "mine" to the other; but it never lacks justice, which prompts us to give the other what is "his," what is due to him by reason of his being or his acting. I cannot "give" what is mine to the other, without first giving him what pertains to him in justice. If we love others with charity, then first of all we are just toward them. Not only is justice not extraneous to charity, not only is it not an alternative or parallel path to charity: justice is inseparable from charity, and intrinsic to it. (20) To make sense of these possessives, "mine, yours," that indicate what belongs to, or is proper to, and eventually due to some individual person, we must distinguish ontological and juridical ownership. (21) The former signifies what is simply in some fashion part of a being, and in this regard belongs to it, constituting its identity in a broad sense. (22) The latter signifies something a bit more difficult to explain, if not understand. It indicates sovereignty, a juris-diction and in this sense an ownership. I say more difficult because ownership of non-personal entities is easier to understand in terms of power.
If I tame a wild horse, he is mine. If I make the table, it is mine. The situation becomes somewhat complex if we observe two men disputing ownership of a tame horse, which...